Review of War Pensions Decisions and Awards

Page 37

Chapter 6

Review of War Pensions Decisions and Awards

REVIEW IN THE WAR PENSIONS SCHEME
6.1 The term ‘review’ is used in the War Pensions Scheme to denote the process whereby decisions, assessments and awards can be reconsidered and changed. The War Pensions Scheme allows decisions made by the Secretary of State accepting or rejecting a claim for pension and assessments of a claimant’s degree of disablement to be reviewed at any time and on any ground, although a revised decision will only operate prospectively from the date of the review application¹unless there are grounds for backdating.²Decisions and assessments made by tribunals can also be reviewed, but only on the ground of a relevant change of circumstances.³

Review of decisions and assessments
6.2 Article 44(1) of the SPO 2006 provides:

(1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8)—

(a) any decision accepting or rejecting a claim for pension; or
(b) any assessment of the degree of disablement of a member of the armed forces; or

(c) any final decision that there is no disablement or that the disablement has come to an end

may be reviewed by the Secretary of State at any time on any ground.

¹SPO 2006, Sch 3, para 1(2)(c).

²See Chapter 7.

³See para 6.7.

Page 38

38 War Pensions and Armed Forces Compensation – Law and Practice

Review of awards

Meaning of ‘award’
6.3 The term ‘award’ is not defined as such, but article 2(1) of the SPO 2006 refers to a person having been ‘awarded’ retired pay, pension, allowance or other continuing benefit. Under article 44(2), awards which do not require a ‘decision’ within the scope of article 44(1) can be reviewed on one of the grounds specified in article 44(2)(a), (b) or (c). Such awards include those which depend on entitlement to other awards, such as severe disablement occupational allowance,⁴

which is paid to claimants who are in receipt of constant attendance allowance and who are also ordinarily employed in a gainful occupation.⁵If a claimant is in receipt of constant attendance allowance but is refused this additional benefit, the refusal will not constitute a ‘decision refusing a claim for pension’ within article 44(1), because the claim for war pension (and for constant attendance allowance) will already have been accepted. However, the refusal will be amenable to review under article 44(2)(a).

Grounds for reviewing awards

Ignorance of a material fact or mistake of fact or law
6.4 By article 44(2)(a) of the SPO 2006, an award can be reviewed at any time if ‘the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law’. In TL v Secretary of State for Defence,⁶

Judge Rowland held (at [16]) that ‘ignorance of, or a mistake as to, a material fact’ is a ground upon which a decision may be reviewed because it was wrong at the date it was made. In social security law, a decision can only be altered on the similar ground in regulation 6(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999⁷if the ignorance or mistake relates to a primary fact, and not merely to an inference or conclusion of fact. In R(I) 3/75, it was held that a claimant must:

assert and prove that the inference might not have been drawn, if the determining authority had not been ignorant of some specific fact of which it could have been aware, or had not been mistaken as to some specific fact which it took into consideration.

⁴SPO 2006, art 10.

⁵See para 9.4.

⁶[2013] UKUT 0522 (AAC).

⁷SI 1999/91.

Page 39

In DP v Secretary of State for Defence (WP),⁸Judge Lane held:

7 If a tribunal is relying on ignorance of material fact in order to revise an assessment, it needs to work out the fact of which the Secretary of State was said to be ignorant. The [tribunal] needs to identify the evidence that was before the Secretary of State and what it contained. If, for example, at the date of decision the Secretary of State actually possessed all the medical reports said to be relevant, it would be difficult to find that he was ignorant of their contents. He may have underestimated or overestimated the significance of the evidence, but that does not mean he was ignorant of facts. Equally, he may simply have made a controversial judgement call in a difficult situation. That does not display ignorance of fact, either.
8 Where a tribunal seeks to rely on a mistake of fact, it must take care to distinguish between fact and opinion. An opinion is a belief which may, or may not, be based on rational analysis of objective facts. Where it is based on matters that are objectively provable, so much the better. Sometimes, however, the basis of an opinion will not be easy to discern. ...
9 In order to classify what otherwise appears to be a mere opinion as a statement of fact, it would be necessary to find that the person putting the opinion forward was impliedly stating that he had reasonable grounds for believing his opinion to be correct.

Relevant change of circumstances
6.5 Under article 44(2)(b) of the SPO 2006, an award can be reviewed at any time if ‘there has been a relevant change of circumstances since the award was made’. In TL v Secretary of State for Defence,⁹Judge Rowland held (at [16]) that a ‘relevant change of circumstances is a ground upon which a decision may be reviewed because it has become wrong as a result of a change since the relevant date’. In the social security case of Saker v Secretary of State for Social Services,¹⁰

it was held that a fact is ‘material’ if it ‘would have influenced the judgment of the medical board, although not necessarily affecting the result’ (per Lloyd LJ) or ‘would have called for serious consideration by the board and might well have affected its decision’ (per Nicholls LJ).¹¹However, in the later social security case of Wood v Secretary of State for Work and Pensions,¹²it was held that a fact is material only if it would result in a different outcome decision. The difference between the two approaches is largely academic, since a decision will only be revised as a result of a review if the fact which gives rise to the review leads to a different outcome. In TL, Judge Rowland followed the approach taken in social

⁸[2017] UKUT 434 (AAC).

⁹[2013] UKUT 0522 (AAC).

¹⁰R(I) 2/88.

¹¹R(I) 2/88, Appendix.

¹²R(DLA) 1/03 [2003] EWCA Civ 53.

Page 40

40 War Pensions and Armed Forces Compensation – Law and Practice

security cases that a new medical report cannot in itself amount to a relevant change of circumstances, but can constitute evidence from which it can be inferred that a change of circumstances has occurred (or from which it might be inferred that a decision was based on ignorance of, or a mistake as to, the facts as they stood at the date of the material decision).¹³However, a mere difference of opinion as to the proper level of assessment cannot justify a reduction in an assessment.¹⁴

Revision of underlying decision or assessment
6.6 If an award is based on a decision or assessment which has been revised as a result of a review under article 44(1) of the SPO 2006, article 44(2)(c) allows the award to be reviewed to reflect the revised decision or assessment.

Review of decisions or assessments by tribunals
6.7 Assessments or decisions made by tribunals on an appeal can also be reviewed, but only on the ground of a relevant change of circumstances since the assessment or decision was made,¹⁵‘including any improvement or deterioration in the disablement in respect of which the assessment was made’.¹⁶In TL v Secretary of State for Defence,¹⁷Judge Rowland held that...